judith gratianus komba vs corporate insurance brokers limited 2024 tzhc 269 12 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LABOUR REVISION NO. 10 OF 2023 (Originating from Labour Dispute No. CMA/KLM/MOS/ARB/16/2022 of the Commission for Mediation and Arbitration at Moshi) JUDITH GRATIANUS KOMBA …………………………… APPLICANT VERSUS CORPORATE INSURANCE BROKERS LIMITED …… RESPONDENT JUDGMENT 16/01/2024 & 12/02/2024 SIMFUKWE, J. The applicant herein Judith Gratianus Komba herein referred to as the applicant, filed the instant application challenging the Award of the Commission for Mediation and Arbitration in Labour Dispute No. CMA/KLM/MOS/ARB/16/2022 of Moshi dated 17th March, 2023. The application was preferred under section 91 (1) (a) and 91 (2) (b) and 94 (1) (b) (i) of the Employment and Labour Relations Act, No. 6 of 2004 read together with rule 24 (1) (2) (a) (b) (c) (d) (e) and (f), 1 (3)(a)(b)(c) and (d) and rule 28 (1)(c)(d) and (e) of the Labour Court Rules, GN No. 106 of 2007 and any other enabling provision of the law. The application was supported by an affidavit sworn by the applicant, which was contested by the counter affidavit sworn by Rachel J. Kastico, Principal Officer of the respondent. The Applicant prayed for the following orders: 1. That, the Honourable Court be pleased to call for and examine the record and proceedings of the Commission for Mediation and Arbitration at Moshi in Labour Dispute number CMA/KLM/MOS/ARB/16/2022 with view of satisfying itself as to its legality, propriety and correctness thereof. 2. That, this Honourable Court be pleased to revise the records of CMA and the Award on the following grounds: (a) That, the Award by Arbitrator was improperly procured. (b) That, the Award by Arbitrator was unlawful and irrational. 3. That, the Honourable Court be in pleasure to grant any other order that deems proper and fit to grant. 2 The brief history of the dispute as deponed by the applicant, is that she was employed by the respondent as a cashier since 03rd day of January 2018. On 21st November 2020 the applicant was suspended from work on grounds of misconduct pending enquiry. On 28th October 2021, the applicant wrote a letter to the respondent claiming for outstanding salaries for the period of suspension. On 23rd November 2021, the respondent responded the letter of the applicant with promise to pay her after completion of the enquiry. Then, on 06th December 2021, the applicant decided to refer her dispute to the CMA claiming her outstanding salary arrears during the suspension period. On their part, the respondents acknowledged before the CMA that they had suspended the applicant due to the loss occasioned by her at the tune of TZS 20,239,830.41/-. That, communication with the applicant proved futile, then the management of the respondent decided to suspend her. That, when the applicant showed up at the office, she was issued with a termination letter dated 03rd December 2020, which she tore in the presence of other staffs. In its findings, the CMA found among other things that the applicant was entitled to payment of her salary from 21/11/2020 when she was suspended to 03/12/2020 when she was terminated. That is twelve days 3 payment. Her monthly salary was Tzs 413,340/=. Thus, she was entitled to 190,772/= for 12 days of suspension. Hence, the applicant faults the said decision of the CMA on the following grounds: a) That, the Honourable Arbitrator erred in law and facts in favour of the respondent since the documentary evidences were improperly assessed and procured by the Arbitrator. b) That, the Honourable Arbitrator erred in law and facts in favour of the respondent, since the CMA award was unlawful and irrationally concluded. The application was argued by way of written submissions. Mr. Exaud Mgaya a Personal Representative argued the application for the applicant, while Mr. Ibrahim Komu, learned counsel contested the application for the respondent. Mr. Exaud Mgaya started his submission by praying to adopt the affidavit of the applicant to form part of his submission. He submitted that the CMA award was procured incorrectly, unlawful, illogical and irrational. He gave an example of page 9 last paragraph of the award where the Arbitrator admitted that the respondent’s witnesses DW1, DW2, DW3 and DW4 told 4 the Commission that the complainant was suspended from employment in November 2020 and terminated on December 2020. He averred that; the Arbitrator failed to assess the main documentary evidence which formed the basis of the dispute. He listed the said documentary evidence: Exhibit J-3 which was the applicant’s letter of suspension dated 21st November 2020, Exhibit J-1, the applicant’s letter dated 28th October 2021 reminding the respondent to pay her salaries pending suspension leave, Exhibit J-2, respondent’s letter of reply dated 23rd November 2021 promising to pay applicant’ salaries on pending suspension leave. Mr. Mgaya continued to submit that on the face of the record, it is very clear that, the CMA award lacked merit on the basis of the material particulars and evidence presented at the time of hearing. That, the documentary evidence was very clear, in surprise the decision was irrational. That, the respondent had admitted claim of the applicant of salary arrears via the respondent’s reply letter dated 23rd November 2021. On the second ground of revision, Mr. Mgaya submitted that, the law is very clear on payment of salaries/wages during suspension leave pending investigation as per GUIDELINES FOR DISCIPLINARY, INCAPACITY AND INCOMPABILITY POLICY AND PROCEDURES in Employment and 5 Labour Relations (Code of Good Practice) G.N 42/2007 under rule 5(1) which provides that: “5(1) …. In circumstances of serious misconduct or incapacity a senior manager may suspend an employee from work pending inquiry. An employee may be suspended if the employee’s presence would abstract the investigation into the alleged offence or if the employee’s presence could create difficulties at work place, an employee who is suspended by management under the circumstances must be paid basic wage for period of suspension.” Mr. Mgaya submitted further that, the applicant was suspended from employment from 23rd November 2020 (Exhibit J-3) to unspecified period of time as it has been proved by respondent’s reply letter dated 23/11/2021 (Exhibit J-2). He explained that, since the respondent admitted via oral and documentary evidence at the time of hearing that the investigation was not yet accomplished by the respondent; and the applicant was not issued with any final investigation report to defend herself to date, therefore the applicant has the right to demand salary arrears for the whole period of suspension. Thus, from November 2020 to October 2021. Mr. Mgaya explained further that the findings of the Arbitrator that the applicant was terminated by the respondent on 6 03/12/2020 was unfounded as the reply letter of the respondent was dated 23/11/2021, almost one year after. Therefore, the issue of applicant’s termination was nullified by the letter dated 23/11/2021. Hence, there was no termination by the respondent as stated by the Arbitrator. Mr. Mgaya gave the following reasons for faulting the decision of the CMA: (i) That, the disciplinary hearing was conducted ex-parte in absence of the applicant. (ii) That, there was no proof of service by the respondent of the notice to attend the disciplinary hearing. (iii) That, the applicant was not issued with final investigation report. (iv) That, the applicant was not notified about termination and she was still on unspecified suspension leave as per exhibit J-2. Mr. Mgaya cited rule 10(1) of the Labour Institutions (Mediation and Arbitration) G.N 64/2007 which provides that: “Dispute about fairness of an employee’s termination……. from the date of termination or date that the employer made a final decision to terminate or uphold the decision to terminate” 7 It was asserted that, the final decision by the employer to terminate the applicant’s employment was not made as the letter used by the Arbitrator to make decision was dated 03/12/202 and the letter of final decision by the employer was dated 23/11/2021 (Exhibit J-2) in which it was concluded that: “Kwa sasa ofisi haitaweza kufanya malipo ya mishahara unayodai hadi hapo shauri litakapofikia muafaka.” It was emphasized that, in the said letter, the employer never stated about applicant’s termination. Rather, focused on applicant’s salary arrears during the suspension period. Therefore, the claim of salary arrears by the applicant during suspension leave was valid as per CMAF1, Exhibit J- 2 and rule 5(1) of GN 42 of 2007 respectively. That, the applicant’s monthly salary was Tsh 413,340/=. Thus, the salary arrears were to be calculated from November 2020 to November 2021 and November 2021 to December 2023 making a total of 40 months. (40x413,340= 16,533,600/=). In his final analysis, Mr. Mgaya prayed that: 1. The applicant be availed with final investigation report so that she may defend herself. 8 2. The applicant be called upon the disciplinary hearing committee and be given opportunity to defend herself and to be heard in accordance to the law. 3. The applicant to be assigned duties or be terminated lawfully. 4. The applicant be paid any pending salaries during suspension leave to date. 5. Any other order(s) which deem proper and fit to be granted. Advocate Ibrahim Komu opposed the application for the respondent. In his version of the background of the case, he contended among other things that; on July 2020 the applicant left her office without handing over properly. In the course of reconciliation, the employer discovered the loss of TZS 20,239,830.41/=. The applicant was notified about the loss and she requested to be deducted TZS 100,000/= per month. The employer did not agree with the proposal and required the employee to explain the cause of loss. The applicant never obliged and or showed cooperation although she was availed with all the documents. That, after being availed with all documents, the applicant denied to have occasioned the loss although she was issued with the reconciliation report and signed to had received the same. That, after being issued with additional statements for the years 2019 and 2020, the applicant requested one week to enable her 9 to examine the actual loss. Thereafter, the applicant did not appear at work or get in touch with the employer. Hence, the management decided to suspend her from work pending a disciplinary hearing. After being suspended, the applicant was not reachable at all although in the suspension letter, the employer provided the phone number of the branch manager. The applicant never contacted the branch manager and her phone was not reachable at all. Mr. Komu continued to narrate that, the respondent proceeded with the disciplinary hearing in absence of the applicant after using all efforts to reach her in vain. However, after termination the applicant went to the office of the respondent where she was issued with the termination letter which she tore in the presence of her fellow staff. From there the applicant disappeared until on October 2021 when she went to the respondent’s office claiming salary arrears. By then the respondent had instituted a criminal case against the applicant. After adopting the counter affidavit of the respondent, Mr. Komu submitted that, the applicant knew that she was terminated for gross misconduct and continued with her normal duties out of employment. She kept silent until October 2021 when she came up with a claim which is not genuine. That, the applicant even gave birth to another baby within 10 the leave circle without notifying her employer. The learned counsel was of the view that if at all the claim was genuine, the applicant should have claimed within 60 days after being suspended and noticed that no salary was deposited into her account. He said that rule 10 (2) of the Labour Institutions (Mediation and Arbitration) Rules (supra) requires that disputes about unpaid salaries should be filed within 60 days. The applicant did not tender any proof of her communication with the employer showing that she claimed for her salary arrears. The applicant was out of time for more than a year without any justification. Mr. Komu subscribed to the decision of this court in the case of Small Industries Development Organization v. Edwin A. Mwagulu (2013) LCCD No. 53. He concluded that, the claim is untenable and has no basis at all. Responding to the issue of evaluation of evidence, Mr. Komu stated that the Arbitrator evaluated evidence presented during the hearing properly and came to lawful and correct decision. That, what the respondent promised to pay was the terminal benefits after conclusion of the investigation which was going on at the time of lodging her letter. Concerning other grounds raised in the submission of the applicant, Mr. Komu observed that the same were immaterial and irrelevant as they were not pleaded before the CMA and in the applicant’s affidavit. That, claimed 11 salary arrears were from November 2020 to October 2021 only. He noted that, parties are bound by their pleadings. He made reference to the case of Maria Amandus Kavishe v. Norah Waziri Mzeru (Administratrix of the Estate of the late Silvanus Mzeru and Majembe Auction Mart, Civil Appeal No. 365 of 2019, in which the Court of Appeal cited with approval the case of Makori Wassanga v. Joshua Mwaikambo and Another [1987] T.L.R 88 in which it was stated that: “A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case.” The learned counsel elaborated that the court itself is bound by pleadings of the parties as they are themselves. He said that, allowing the applicant to bring new issues which were not stated in her pleadings will result in endless litigation. He finalised that, since the applicant committed the offence as charged, she is not entitled to any further claims. He prayed the claims to be dismissed with costs. In his rejoinder Mr. Exaud Mgaya submitted that before the CMA the main issue was: “Whether the applicant is entitled to her claims.” He went on to rejoin that, from July 2020 the applicant left the office for maternity leave and the respondent was aware of the leave. In proof of 12 the same, the applicant tendered the birth certificate of her child (Exhibit J-4). That, the applicant returned to work on 20/10/2020 and on 23/11/2020 she was suspended from work pending investigation. Responding to the issue of time limit, Mr. Mgaya submitted that, the applicant complied with all the requirement for her claims to be determined out of time by filling CMAF1 and CMAF2. The hearing for condonation was heard in the presence of the respondent’s advocate. The ruling of the same was delivered on 14/03/2022 before Hon. Massawe R (Mediator). Concerning the allegations of issues which were not pleaded, Mr. Mgaya stated that what was stated by the respondent did not reflect the records of the CMA on CMAF1 on the nature of the dispute. He referred to paragraph 3, 4 and 6(b) of the CMAF1 where the applicant claimed for salaries of 12 months and claimed that she was still an employee of the respondent. He reiterated the reliefs claimed in the affidavit of the applicant. In reply to the suggestion that since the applicant committed the offence charged, she was not entitled to any further claim, Mr. Mgaya submitted that the argument was baseless and unfound as the principle of natural justice is clear that, “no one shall be condemned unheard.” 13 After considering the rival submissions of both parties, the grounds of revision of the applicant and the CMA records; on the outset I would like to address first the issue raised by the respondent that there were grounds which were raised by the applicant which were immaterial and irrelevant. Mr. Komu alleged that the issue of salary arrears up to date, was never raised before the CMA nor in the affidavit in support of this revision. I am at one with Mr. Mgaya that in CMAF1 the applicant claimed for salary arrears of 12 months and alleged that she was still an employee of the respondent. Based on that fact, the only issue for consideration before the Commission was whether the complainant (applicant) was entitled to her claim of salaries from November, 2020 to November 2021. In consideration of evidence of both parties, the Commission found that the employment of the applicant was terminated on 03/12/2020. That, the applicant was made aware that her employment was terminated. Thus, she deserved to be paid salary from 21/11/2020 to 3rd December 2020 making 12 days duration. She was then awarded 190,772/=. The main complaint of the applicant against the CMA decision is assessment of documentary evidence, which led to irrational and unlawful decision. Therefore, the issue for determination in this court is whether 14 the Commission assessed properly documentary evidence produced by both parties? I had time to go through all the exhibits tendered by both parties as well as the reasoning of the learned Arbitrator in respect of the produced exhibits. It is evident from the record that on 10/07/2020 the respondent wrote a letter to the applicant informing her about the loss of TZS 20,239,830.41/= and required her to give explanation about the loss. The said letter was produced by the respondent and it was admitted as exhibit C-1. On 02/08/2020, the applicant replied a letter dated 10/07/2020 and explained that: “Mimi Judith G. Komba niliondoka kazini bila kufanya makabidhiano kwa sababu hali yangu kiafya ilibadilika ghafla mpaka kupelekea kushindwa kabisa kutembea tarehe 06/07/2020 mpaka nilipojifungua tarehe 26/07/2020. Pia kiasi hiki cha Sh. 20,239,830.41 ambacho hakionekani naomba nipewe muda wa kufanya reconciliation.” It is also on record that through exhibit C-2, on 02/09/2020 the applicant prayed to be deducted TZS 100,000/= per month to pay the lost money. On 10/09/2020, through exhibit C-4 the applicant was summoned to 15 attend a brief meeting on the same day at 15:00 hrs concerning the loss of TZS 20,239,830.41/=. On 06/11/2020, the applicant requested for Mpesa statements from September 2019 to June 2020 so that she may proceed with the reconciliation for one week from 09/11/2020 to 16/11/2020. According to DW1, the said statements were availed to the applicant. Then, on 21/11/2020 the applicant was suspended (exhibit (C- 6). On 25/11/2020 the applicant was given two days to explain why disciplinary actions should not be taken against her through exhibit C-7. On 02/12/2020 a disciplinary hearing was conducted ex parte and on 03/12/2020 the applicant was terminated with effect from 02/12/2020 (Exhibits C- 8 and C-9 are relevant). The Commission awarded payment of 12 days to the applicant on ground that the applicant was terminated from employment after 12 days of suspension. With due respect to the learned Arbitrator, I am convinced to support the assertion of the applicant that the produced documentary evidence was not assessed properly. Before I proceed to state my reasons for faulting the findings of the Commission, since the cause of the salary arrears is suspension of the applicant, I wish to refer to the law in respect of the issue of suspension. Rule 27(1), (2), (4) and (5) of the 16 Employment and Labour Relations (Code of Good Practice) Rules, GN No. 42 of 2007 provides that: “27(1) Where there are serious allegations of misconduct or incapacity, an employer may suspend an employee on full remuneration whilst the allegations are investigated and pending further action. (2) The employee suspended shall be given a written letter of suspension, setting out the reason for the suspension and any terms of the suspension. Emphasis added (4) The period of suspension must be reasonable, taking into consideration how long the investigation and the decision or any further action may take. (Emphasis mine) (5) Notwithstanding the provision of section 35 of the Act, an employee charged with a criminal offence, may be suspended on full remuneration pending a final determination by a court and any appeal thereto, on that charge.” Emphasis added In the instance case, DW1 stated before the CMA that they expected to receive the investigation report on January 2023. DW1 acknowledged 17 that, the suspension letter had not stated the date of the end of suspension. I am of considered opinion that the applicant was terminated contrary to the terms of suspension letter which had no time limit. Moreover, the ex parte disciplinary hearing dated 02/12/2020 was held contrary to the law as there is no documentary exhibit to show that the applicant was summoned or made aware of the said hearing. Page 4 of the CMA Award shows that DW1 said that the letter of termination of employment (exhibit C-9) showed that the reasons for termination were the loss of funds and lack of cooperation. I wonder what kind of cooperation did DW1 expect from the applicant apart from that which she exhibited? It may be noted that the applicant replied the respondent’s letter seven days after she had delivered her baby. (02/08/2020). The applicant continued to communicate with the respondent till on 21/11/2020 when she signed a suspension letter. On the standard of proof of civil cases, I hesitate to believe that the applicant was not cooperative to the extent of triggering the decision by the respondent at such a supersonic speed to terminate her without complying to the requirements of the law. Rule 13(1), (2), (3), (4) and (8) of GN No. 42 of 2007 provides that: 18 “13(1) The employer shall conduct an investigation to ascertain whether there are grounds for a hearing to be held. (2) Where a hearing is to be held, the employer shall notify the employee of the allegations using a form and language that the employee can reasonably understand. Emphasis added (3) The employee shall be entitled to a reasonable time to prepare for the hearing and to be assisted in the hearing by a trade union representative or fellow employee. What constitutes a reasonable time shall depend on the circumstances and the complexity of the case, but it shall not normally be less than 48 hours. Emphasis added (4) The hearing shall be held and finalised within a reasonable time, and chaired by a sufficiently senior management representative who shall not have been involved in the circumstances giving rise to the case. (8) After the hearing, the employer shall communicate the decision taken, and preferably furnish the employee with written notification of the decision, together with brief reasons.” 19 According to the CMA record, the respondent never complied to rule 13 (2) and (3) of GN No. 42/2007 (supra). Had the Hon. learned Arbitrator considered that fact, she could have scrutinized the produced documentary evidence properly and found in favour of the applicant. The termination of the applicant was not worth to be relied upon to dismiss the claims of her salary arrears for the period of suspension which was indefinite. I am of the opinion that, the applicant could have failed to cooperate from the beginning if she was that kind of a person, as she had a very good reason that she was in her last days of expecting and later she had just delivered. However, soon after delivery, the applicant replied the letter of the respondent dated 10/07/2020. She continued to cooperate until her suspension. I have not considered the allegation of the respondent that the applicant was not reachable as DW1 stated at page 19 first paragraph of the CMA proceedings that she used to take all the original letters to the applicant at home. At page 20, DW1 averred that there was a day she missed the applicant at her home, then they decided that exhibit C-7 be kept in her file. The said exhibit as stated herein above, was requiring the applicant to explain why disciplinary action should not be taken against her. It is obvious, the 20 same cannot amount to notice of the disciplinary hearing which terminated the employment of the applicant. It is from the above findings that I agree with the applicant that the decision of the Hon. Arbitrator was irrational and unlawful. I therefore revise and set aside the award meted therefrom. Since the investigation report has not been issued to the applicant to date, it may safely be presumed that the applicant is still under suspension. Hence, she deserves to be paid her salary arrears for the whole period of suspension. That is from November 2020 to the date of full payment, unless the respondent terminates the applicant pursuant to the law. In the event, the application is granted as prayed. This being a labour matter, no order as to costs. It is so ordered. Dated and delivered at Moshi this 12th day of February 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 12/02/2024 21 22